22CA1892 Peo v Chalchi-Sevilla 07-03-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1892
El Paso County District Court No. 10CR1604
Honorable Robin Chittum, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ricardo Chalchi-Sevilla,
Defendant-Appellant.
ORDER AFFIRMED
Division IV
Opinion by JUDGE NAVARRO
Pawar and Johnson, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 3, 2024
Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
William Holzer, Alternate Defense Counsel, Littleton, Colorado, for Defendant-
Appellant
1
¶ 1 Defendant, Ricardo Chalchi-Sevilla, appeals the district court’s
order denying his postconviction motion alleging that he received
ineffective assistance of counsel at trial. We affirm.
I. Factual and Procedural History
¶ 2 In April 2010, Esteban Garcia, his two granddaughters, and
an employee were closing Garcia’s restaurant for the night when
Bertha Melo knocked on the door. Garcia informed Melo that the
restaurant was closed, but he eventually allowed her inside when
she said she only needed to purchase a calling card (which the
restaurant also sold). Melo purchased the calling card and left the
store, returning to a pickup truck where Chalchi-Sevilla waited.
Chalchi-Sevilla left the truck and went to the restaurant. As Garcia
was locking the door, Chalchi-Sevilla pointed a gun at him and
yelled (in Spanish), “Where is the money?” When Garcia attempted
to pull out his own gun, Chalchi-Sevilla fired, hitting Garcia six
times. Chalchi-Sevilla fled the scene, and Garcia died at the
hospital.
¶ 3 Chalchi-Sevilla was convicted of first degree felony murder,
conspiracy to commit aggravated robbery, attempted aggravated
robbery, accessory to murder, and crime of violence counts. The
2
trial court imposed a sentence of life in prison without the
possibility of parole on the murder conviction and shorter,
concurrent sentences on the other convictions. In 2015, a division
of this court affirmed Chalchi-Sevilla’s convictions on direct appeal.
See People v. Chalchi-Sevilla, (Colo. App. No. 12CA0202, Feb. 19,
2015) (not published pursuant to C.A.R. 35(f)).
¶ 4 In 2016, Chalchi-Sevilla filed a pro se petition for
postconviction relief under Crim. P. 35(c), asserting that he received
ineffective assistance of trial counsel. The district court denied the
petition without appointing counsel or holding a hearing. In 2019,
a division of this court reversed the district court’s ruling and
directed that court to appoint postconviction counsel for Chalchi-
Sevilla, to allow counsel to supplement his pro se petition, and to
conduct an evidentiary hearing. See People v. Chalchi-Sevilla, 2019
COA 75, ¶ 27.
¶ 5 In May 2021, Chalchi-Sevilla, through counsel, filed a
supplemental petition for postconviction relief, again asserting that
he received ineffective assistance of trial counsel. Following the
evidentiary hearing, the district court denied the petition.
3
II. Analysis
¶ 6 Chalchi-Sevilla contends that his trial attorneys did not
provide effective assistance because they (1) failed to properly
advise him of the potential parole impact on his prison sentence if
he had accepted the prosecution’s plea offer; and (2) improperly
advised him about his ability to assert a duress defense, thereby
causing him to waive his right to testify rather than testify in
support of such a defense.
A. General Principles
¶ 7 “A criminal defendant is constitutionally entitled to effective
assistance from his counsel.” Ardolino v. People, 69 P.3d 73, 76
(Colo. 2003). To demonstrate ineffective assistance of counsel, a
defendant must satisfy the two-prong test set forth in Strickland v.
Washington, 466 U.S. 668 (1984). The defendant must show that
(1) their attorney’s performance was deficient and (2) the deficient
performance prejudiced them. Id. at 687; Dunlap v. People, 173
P.3d 1054, 1062 (Colo. 2007). To obtain relief, the defendant must
(Colo. App. 2001); see Dunlap, 173 P.3d at 1063 (“Only where both
the performance prong and the prejudice prong have been proven
4
will a defendant be entitled to postconviction relief because of the
ineffective assistance of counsel.”).
¶ 8 In postconviction proceedings, the legality of the judgment and
regularity of the proceedings leading up to the judgment are
presumed, and the defendant bears the burden to establish by a
preponderance of the evidence the allegations in the postconviction
motion. People v. Firth, 205 P.3d 445, 449 (Colo. App. 2008).
Because the ineffectiveness of counsel inquiry involves mixed
questions of fact and law, we defer to the district court’s findings of
fact if they are supported by the record and review legal conclusions
de novo. Dunlap, 173 P.3d at 1063. In resolving issues of fact, the
district court determines the weight and credibility to be given the
testimony of witnesses. People v. Gandiaga, 70 P.3d 523, 526 (Colo.
App. 2002).
B. Plea Offer
¶ 9 Chalchi-Sevilla first contends that his trial attorneys were
ineffective because they failed to adequately advise him about his
opportunity for parole if he accepted the prosecution’s offer of a
stipulated sixty-year prison sentence. We disagree because the
5
record supports the district court’s finding that the prosecution
never made such a plea offer.
1. Additional Facts
¶ 10 In September 2011, Chalchi-Sevilla and the prosecution began
plea negotiations through a mediator. The prosecution offered
Chalchi-Sevilla a stipulated sentence of seventy-five years for the
crimes of second degree murder and attempted aggravated robbery.
Chalchi-Sevilla’s counsel proposed a counteroffer of thirty to forty
years if he pleaded guilty to second degree murder. Ultimately, the
parties failed to reach an agreement, and this case went to trial.
¶ 11 In Chalchi-Sevilla’s pro se and supplemental Rule 35(c)
petitions, he alleged that the prosecution extended a plea offer of
sixty years and that his counsel recommended that he reject the
deal because an offer of sixty years was “essentially equivalent to a
life sentence.” He also alleged that at no point during the mediation
did his attorneys ever discuss the possibility of being paroled or
parole eligibility dates.
¶ 12 Three witnesses testified during the postconviction hearing:
Jared Grabski, who represented Chalchi-Sevilla as second-chair
counsel from the beginning of the case through trial; Todd Johnson,
6
who represented Chalchi-Sevilla as first-chair counsel from October
2011 through the trial; and Chalchi-Sevilla himself.
¶ 13 Grabski testified that the plea negotiations occurred at
mediation in September 2011. He indicated that — due to his role
as second chair — it was unlikely that he led any discussions with
Chalchi-Sevilla regarding the plea negotiations or the potential of
parole. Grabski also said that Chalchi-Sevilla’s defense team would
have advised him about the penalties and potential benefits of any
plea offers but that he did not personally recall any such
conversation with Chalchi-Sevilla.
¶ 14 Grabski remembered that the prosecution’s plea deal offered
seventy-five years in prison, consisting of consecutive sentences for
second degree murder and aggravated robbery. He also recalled
that the defense proposed a counteroffer of thirty to forty years if
Chalchi-Sevilla agreed to plead guilty to second degree murder.
Grabski further testified that he did not remember the defense
receiving any offers from the prosecution other than the seventy-
five-year deal. Grabski explained that no agreement was reached
and that, at the end of mediation, the defense was “left with an offer
of [seventy-five] years from the district attorney.”
7
¶ 15 Grabski was asked if he recalled the mediator telling the
defense team to not “bother calling the DA’s office with anything
less than [sixty years]?” Grabski responded, “I don’t remember
that.” When later asked, “is that figure of [sixty] years one that was
raised in negotiations,” Grabski said, “it sounds familiar, but I can’t
be certain.”
¶ 16 Johnson testified that he became involved in Chalchi-Sevilla’s
case in October 2011, shortly before the trial began. Johnson said
that he did not have any recollection of plea negotiations occurring
after he became involved and that “to a certain extent by the time I
came on it was a trial case.”
1
¶ 17 Chalchi-Sevilla testified that his attorneys told him that he
was charged with homicide and that, if he was convicted, he could
face the penalty of life in prison without the possibility of parole.
He said his attorneys did not discuss a plea deal with him until
mediation. He said he offered to plead guilty if there was a
1
Two other attorneys — Tamra Bowman and Tracy Eubanks —
represented Chalchi-Sevilla as first-chair counsel before Todd
Johnson. Neither Chalchi-Sevilla nor the prosecution offered the
testimony of Bowman or Eubanks at the postconviction hearing.
8
guarantee of between thirty to forty years in prison but that the
prosecution rejected the offer, saying that it “had to be [seventy-five
years].”
¶ 18 Chalchi-Sevilla also testified that, after mediation, he had
several conversations with his attorneys. He confirmed that his
attorneys said the prosecution had offered a plea of seventy-five
years. Then, Chalchi-Sevilla claimed that his attorneys said the
offer was for sixty years but that they advised him to reject a sixty-
year offer because it was practically a life sentence without parole.
¶ 19 In its written order, the district court found that the testimony
of the attorneys was credible, and that Chalchi-Sevilla’s testimony
was not. The court also found that the prosecution never made an
offer of sixty years to Chalchi-Sevilla and that he would not have
taken such an offer in any event. Therefore, the court determined
that, “[a]s there was no [sixty-year] offer, trial counsel was not
deficient in failing to discuss potential parole on such an offer.”
2. Analysis
¶ 20 Deficient performance is that which falls outside “the wide
range of professionally competent assistance.” People v.
Washington, 2014 COA 41, ¶ 18 (quoting People v. Cole, 775 P.2d
9
551, 554 (Colo. 1989)). An attorney’s failure to present a defendant
with the opportunity to make a reasonably informed decision
whether to accept a plea offer constitutes deficient representation.
Carmichael v. People, 206 P.3d 800, 806 (Colo. 2009) (holding that
attorney’s “failure to appropriately counsel his client regarding the
attractiveness of the plea bargain in relation to the risks of going to
trial was constitutionally deficient performance”); People v. Delgado,
2019 COA 55, ¶ 17 (holding that an attorney’s failure to properly
advise a defendant about his sentencing exposure deprives that
defendant of the opportunity to make an informed decision whether
to accept or reject an offer).
¶ 21 To establish prejudice where the defendant rejected a plea
offer, the defendant must show a reasonable probability that, but
for counsel’s deficient performance, the defendant would have
accepted the offer. Carmichael, 206 P.3d at 807; Delgado, ¶ 21.
The defendant must also demonstrate a reasonable probability that
the prosecution would not have withdrawn the offer and that the
court would have accepted it. Delgado, ¶ 21; see also Lafler v.
Cooper, 566 U.S. 156, 164 (2012).
10
¶ 22 We conclude that the evidence presented at the hearing —
specifically, the testimony of Grabski and Johnson detailed above —
supports the district court’s finding that the prosecution did not
offer a plea deal of sixty years in prison. See Delgado, ¶ 29 (The
threshold question for an ineffective assistance of counsel claim
based on the defendant’s rejection of an alleged plea offer is, “Did
the prosecutor offer defendant a plea agreement before the first
trial? If not, the claim fails.”).
¶ 23 To the extent Chalchi-Sevilla’s testimony about a sixty-year
offer conflicted with others’ recollection, we must defer to the
district court’s resolution of the conflict. See People v. Corson, 2016
CO 33, ¶ 32 (deferring to the district court’s findings because the
court’s credibility determination had support in the record);
Sanchez-Martinez v. People, 250 P.3d 1248, 1254 (Colo. 2011)
(“[A]ssessing the credibility of witnesses is a trial court function.”).
Notably, Grabski recalled only a seventy-five-year offer from the
prosecution, and he testified that any other offer would have been
documented in the defense’s case file. While Grabski also testified
that the mediator’s comment about a sixty-year sentence sounded
familiar, he could not be certain the comment was made.
11
¶ 24 Nonetheless, Chalchi-Sevilla relies heavily on the mediator’s
alleged comment that defense counsel should “not bother giving a
counteroffer of less than [sixty years].” Chalchi-Sevilla says the
mediator’s statement “should be sufficient to establish an offer of
[sixty] years.” But even assuming the mediator made this comment
to the defense, it does not suggest — much less, conclusively
establish — that the prosecution made a sixty-year offer. The
prosecution, not the mediator, was vested with the discretion to
engage in, or abstain from, plea negotiations. See People v. Justice,
2023 CO 9, ¶¶ 24-25 (holding that the “decision to have or forgo
plea discussions is the People’s and the People’s alone” and that the
defendant cannot “enlist the court’s assistance via an order for
mediation to try to force the People to extend an offer or to consider
a more favorable offer”).
¶ 25 In sum, because evidence in the record supports the district
court’s factual finding that the prosecution did not offer Chalchi-
Sevilla a sixty-year plea deal, we affirm the court’s decision that his
counsel could have not performed deficiently with respect to such a
plea deal.
12
¶ 26 Finally, to the extent Chalchi-Sevilla raises issues with respect
to the seventy-five-year plea offer, we will not address them. In his
Crim. P. 35(c) petitions, he alleged that his trial counsel performed
deficiently as to the prosecution’s alleged sixty-year plea offer. He
did not claim that his counsel rendered ineffective assistance as to
the plea offer of seventy-five years. Likewise, his postconviction
counsel’s arguments at the hearing focused on the alleged sixty-
year plea offer.
¶ 27 On appeal, however, Chalchi-Sevilla now claims that his trial
counsel also rendered ineffective assistance as to the prosecution’s
plea offer of seventy-five years. He says this claim was preserved at
the hearing by his postconviction counsel’s two-sentence allusion to
why he rejected the seventy-five-year plea offer. Even assuming
(without deciding) that a defendant can raise new postconviction
claims at an evidentiary hearing, we conclude that counsel’s fleeting
assertion did not sufficiently alert the district court to the claim
13
now raised on appeal. Not surprisingly, then, the court did not rule
on such a claim.
2
¶ 28 And we will not entertain the new claim on appeal. To allow
Chalchi-Sevilla to use his appellate briefs “to fortify” issues
“inadequately raised or supported by his motion” would “effectively
grant [him] a successive 35(c) motion without also burdening him
with the harsher standard of review appropriate to a successive
motion.” People v. Rodriguez, 914 P.2d 230, 251 (Colo. 1996);
DePineda v. Price, 915 P.2d 1278, 1280 (Colo. 1996) (“Issues not
raised before the district court in a motion for postconviction relief
will not be considered on appeal of the denial of that motion.”);
People v. Stovall, 2012 COA 7M, ¶ 3 (“Defendant has asserted three
claims of ineffective assistance of plea counsel that were not
sufficiently presented to the trial court and, therefore, are not
properly before us.”).
2
In his reply brief, Chalchi-Sevilla says “the court’s rejection of the
petition was a ruling on the claim” related to the seventy-five-year
plea offer. As noted, however, his Crim. P. 35(c) petitions did not
raise such a claim.
14
¶ 29 Given all this, we affirm the district court’s order that Chalchi-
Sevilla did not receive ineffective assistance of counsel with respect
to plea negotiations.
C. Duress Defense and the Right to Testify
¶ 30 Chalchi-Sevilla also contends that his attorneys provided
ineffective assistance because, based on their misunderstanding of
the law, they advised him not to testify that he was under duress at
the time of the crimes. We disagree because he did not prove that
his attorneys gave him such advice.
1. Additional Facts
¶ 31 At the postconviction hearing, Chalchi-Sevilla testified that,
the week before the trial, he told his attorneys that he acted under
duress during the crimes (because Melo forced him to commit the
crimes). He asserted that, after his attorneys learned that he
wanted to testify about this duress, they advised him not to testify
and that duress could be a defense to the theft charge but not to
the homicide charge.
3
Based on this information, Chalchi-Sevilla
alleged, he decided not to testify at trial.
3
Chalchi-Sevilla was not charged with theft.
15
¶ 32 Grabski testified at the postconviction hearing that he did not
remember having any conversations with Chalchi-Sevilla about
Melo forcing him to participate in the crimes. Grabski also pointed
out that Chalchi-Sevilla never mentioned that he acted under
duress when he gave his statement to the police; rather, Chalchi-
Sevilla denied being at the scene of the crime. Based on this
information, Grabski believed that the best trial strategy for
Chalchi-Sevilla’s defense was to attack the credibility of the
witnesses who had identified Chalchi-Sevilla as the culprit.
¶ 33 Similarly, Johnson did not recall having conversations with
Chalchi-Sevilla about a duress defense. Johnson said he was
confident that he spoke with Chalchi-Sevilla about the nature of the
defense before trial. Johnson, however, was less confident about
whether any of those conversations addressed duress. He testified
that he did not recall having that specific conversation with
Chalchi-Sevilla. Although Johnson recalled having conversations
during his career about duress not being a defense to felony
murder, he could not “specifically say it was tied to this case.”
¶ 34 When Johnson was later asked if he believed that “duress
would have been something you would have discussed with
16
[Chalchi-Sevilla],” he replied, “Yes, I believe so.” Subsequently,
however, Johson reiterated that he had no “independent
recollection” of such a conversation with Chalchi-Sevilla.
2. Analysis
¶ 35 To establish ineffective assistance of counsel regarding a
waiver of the right to testify, the defendant must prove by a
preponderance of the evidence that (1) defense counsel’s advice fell
below the professional level of competence demanded of attorneys
practicing in criminal law at the time of the trial and thereby
deprived the defendant of the ability to make an informed and
voluntary decision on whether to exercise the right to testify; and
(2) a reasonable probability exists that, but for defense counsel’s
deficient performance, the result of the trial would have been
different. People v. Naranjo, 840 P.2d 319, 325 (Colo. 1992).
¶ 36 Chalchi-Sevilla contends that he elected not to testify that he
was under duress when he participated in the crimes because his
counsel advised him that duress was not a defense to felony
murder. He says this advice was erroneous in light of the decision
in Doubleday v. People, 2016 CO 3, which was announced five years
after his trial. In that case, our supreme court held that duress can
17
be a defense to felony murder where duress is a defense to the
predicate offense of the felony murder charge. See id. at ¶¶ 24-27.
¶ 37 Chalchi-Sevilla, however, failed to prove to the fact finder’s
satisfaction that his counsel gave him erroneous advice about
duress. To reiterate, a defendant must establish each Strickland
prong by a preponderance of the evidence. See Naranjo, 840 P.2d
at 325. Thus, the defendant bears the burden to convince the
district court that the existence of the pertinent fact is “more
probable than its nonexistence.” People v. Taylor, 618 P.2d 1127,
1135 (Colo. 1980) (quoting Page v. Clark, 197 Colo. 306, 318, 592
P.2d 792, 800 (1979)). Put differently, proof by a preponderance of
the evidence requires that the evidence must “preponderate over, or
outweigh, evidence to the contrary.” City of Littleton v. Indus. Claim
Appeals Off., 2016 CO 25, ¶ 38 (citation omitted).
¶ 38 Neither of Chalchi-Sevilla’s attorneys who testified at the
hearing recalled any conversation with him about a duress defense.
While Chalchi-Sevilla testified that such a conversation took place,
the court generally found his testimony incredible. As a result, the
court found that “the evidence on this issue is blurred. The Court
is not convinced a discussion about duress did not take place. The
18
Court is not convinced a discussion did take place.” Consequently,
because Chalchi-Sevilla did not convince the court that the alleged
discussion about duress took place, he failed to carry his burden to
prove that his counsel performed deficiently.
¶ 39 Therefore, we will not disturb the court’s denial of his claim.
III. Conclusion
¶ 40 The order is affirmed.
JUDGE PAWAR and JUDGE JOHNSON concur.
